Published on: 5th November 2018

Funeral wishes

According to one report a quarter of deaths in the UK lead to family disputes, and over a fifth of these disputes concern the final resting place of the deceased's ashes or coffin. Many disputes reach their peak during the funeral itself. With the number of second marriages increasing this trend is likely to continue.

Who has first right to the body or ashes? Is it the person who paid for the funeral, the next of kin, the person who signed the cremation form, the personal representative, or the coroner? And who decides who has priority? Is it the undertaker, the hospital, the court, or is it the deceased (in their Will)? The basic starting point is that:

• nobody owns a body - there is no property in a dead body
• the person entitled to possession of the body is the person who is under a duty to dispose of the body
• a crematorium authority must hand over the ashes to the person who delivered the body for cremation
• unfortunately, similar to family disputes, funeral disputes are often complex, and many cannot simply be resolved by applying the above three rules.

Since there is no property in a corpse' it is not possible for a body to be gifted or disposed of by a Will. However, the law permits that a body (or part of it) may be donated for medicine or science. Whether or not a body can be disposed of in a Will is a topic that is also up for debate.

What about the testators' wishes? Until the end of last century, it was generally accepted law that the purpose of a Will was to deal with the disposal of property, and since a body was not property, a testator's instructions for the disposal of it were not legally binding or capable of being enforced. This, however, has been subject to challenge under Article 8 of the Human Rights Act 1998 relating to respect for family life, and is likely to also be open to challenge under Article 9, relating to freedom of conscience, thought and religion. Who, then, is entitled to possession of the body? The law is quite specific in respect of this question. It is the person who is under a duty to dispose of the body, and the right to possession starts at the time of death. Many would consider that the next of kin, a surviving spouse or partner, or other close family member, would have first right, but that's not necessarily the case.

• First, a hospital has the right to detain a body if it is deemed that the body may be infectious, or if someone has died from a notifiable disease.
• The coroner then has first right to take possession of the body. This is a right to take temporary possession, in order to determine the cause of death. Once the coroner has completed their examination, the body will be released.
• If there is a Will, the person entitled to possession is the named executor (whether a family member or not).
• If there is no Will, it is the person who has priority on intestacy (under rule 22 of the Non-Contentious Probate Rules).
• Under a distinct set of rules, the parents of a minor child have a duty to arrange a funeral.

The term  next of kin' means little in this regard. A surviving spouse may be entitled to possession of the body and to arrange the funeral by virtue of their appointment as an executor, or under the rules of intestacy, but in the case of an unmarried couple, where there is a death and no Will, the surviving partner would have no automatic say in respect of the funeral. That said, the fact that an executor or administrator is entitled to possession of a body does not mean that they will arrange the funeral without consultation. Executors (especially professional executors) often delegate responsibility for arranging a funeral to family (though the executor has the right to the final say and can overrule family members).

Disputes among executors Where there is a dispute among executors and compromise cannot be reached, or if a Will is subject to challenge (for example, through grounds of lack of capacity, undue influence, or want of due execution), there is recourse to the courts, although this will clearly lead to delay in the burial or cremation. In one reported case, seven months passed, during which time the deceased's body remained in the custody of the coroner. The statutory rules and orders that regulate cremation determine that ashes can only be handed over to the person who delivered the body for cremation (usually the executor). Crematorium paperwork contains questions designed to prevent the cremation of a body without the knowledge of close relatives and executors. Where disputes do arise about the ashes, and such cases appear before the court, the judgements given have not been consistent. It appears that there is no legal definition of ashes, and whether ashes should be treated along with the body (under common law) and be incapable of being owned, or have the status of property, remains untested. Making a Will and appointing an executor or executors is a way of reducing the likelihood of a dispute. We also recommend that our clients write down their funeral wishes and file these wishes with but not attached to their Will. If you would like to meet with one of our Consultants to discuss any of the issues raised in this article or any other Estate Planning topic please telephone 01732 868190 or click here.

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